TMI Blog2005 (4) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... o other notices were served on the assessee which fact has also been noted by the Commissioner of Income-tax. - Specific averment having been made in the petition under section 264 of the Act that no notice except the notice issued under section 143(2) of the Act, dated October 27, 1995, having been issued, which fact had also been noticed by the Commissioner of Income-tax, it goes to prove the case set up by the petitioner that no notice under the proviso to sub-section (1) of section 144 of the Act had been issued. Thus, the assessing authority could not have taken recourse to the provision of section 144 of the Act without giving an opportunity by serving a notice. - - - - - Dated:- 29-4-2005 - Judge(s) : R. K. AGRAWAL. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount, trading and profit and loss account, balance-sheet, list of sundry debtors, sundry creditors and unsecured loans. The return was processed under section 143(1)(a) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") vide intimation dated February 24, 1995. The return was accepted in the status of a partnership firm. Subsequently, the case was selected for scrutiny on random basis and a notice dated October 27, 1995, was issued under section 143(2) of the Act. This notice was served upon the petitioner on November 7, 1995, but on account of illness of Smt. Sofia Malik, nobody could appear before the assessing authority. The Assistant Commissioner of Income-tax, Circle 11(3), Kanpur, had made the assessment on March 6, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Act is liable to be set aside. He submitted that before the Commissioner of Income-tax in the petition under section 264, a specific plea was raised in paragraph 1.3 that except the above notice, i.e., the notice under section 143(2), no other notices were served on the assessee which fact has also been noted by the Commissioner of Income-tax. He further submitted that in paragraph 7 of the writ petition specific averment has been made that apart from the above notice which refers to the notice dated October 17, 1995, issued under section 143(2) of the Act, no other notices were served upon the petitioner. In the supplementary affidavit filed by the petitioner on October 23, 2000, it has been specifically stated that no notice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit are an afterthought and cannot be taken into consideration. Having heard learned counsel for the parties, I find that under the proviso to section 144 of the Act before resorting to the best judgment assessment, an opportunity is to be given by the assessing authority by serving a notice calling upon the assessee to show cause as to why the assessment should not be made to the best of judgment. Section 144 of the Act reads as follows: "144. Best judgment assessment.-(1) If any person- (a) fails to make the return required under sub-section (1) of section 139 and has not made a return or a revised return under sub-section (4) or sub-section (5) of that section, or (b) fails to comply with all the terms of a notice issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant assessment year." From a perusal of the aforesaid provisions, it is seen that the present case falls under clause (c) of sub-section (1) of section 144 of the Act as the petitioner had failed to comply with the terms of the notice issued under sub-section (2) of section 143 of the Act. Thus, under the first proviso, it was incumbent upon the Assessing Officer to give an opportunity to the petitioner by serving a notice calling upon the assessee to show cause by a date and time to be specified in the notice why the assessment should not be completed to the best of his judgment. It may be mentioned here that the second proviso which provides that the opportunity as provided under the first proviso is not to be given in case a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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